SILVA v. SILVA et al.

SILVA v. SILVA et al.

D. C, Colombo, C 20,884.

Decree for judicial separation in suit for divorce-Necessity of framing issues-as to minor remedy-Husband's liability for costs in any event.

There is no objection to a decree of judicial separation being entered in a suit brought by a person claiming a divorce a vinculo matrimonii, provided proper issues are framed, and decided, as to the grounds on which the minor remedy may be decreed.

In an action for divorce a vinculo matrimonii or a mensa et thoro the husband, besides being generally liable to pay his own costs, is also, as a general rule, whether the wife be successful or not, liable to pay his wife's costs, unless she has separate property of her own of sufficient value to enable her to pay the expenses of the proceeding.

THE facts sufficiently appear in the judgment.

H. J. C. Pereira, for first defendant, appellant.

 E. W. Jayewardene, for plaintiff, respondent.

Cur. adv. vult.

 18th July, 1905. PEREIRA, J.-

In this case the plaintiff, who is the wife of the first defendant, charges him with adultery with the second defendant and with cruelty, and claims, as against him, a divorce a vinculo matrimonii. Two issues were framed: (1) Between the 25th September and 3rd October, 1904, did the first defendant commit adultery with the second defendant? And (2) What alimony, if any, is the plaintiff entitled to claim ? After evidence had been led by both parties the District Judge held that the first defendant had not committed adultery with the second defendant, but that the

first defendant was guilty of cruelty towards the plaintiff, and allowed the plaintiff to make an application for a judicial separation. That was done, and the first defendant's counsel appeared to show cause. The plaintiff's counsel cited a case from Vanderstraaten's Reports (p. 180) in support of his application, and the District Judge, having heard the first defendant's counsel, eventually allowed the application and ordered a judicial separation. The case cited from Vanderstraaten's Reports, assuming that it is applicable to matrimonial actions under the Civil Procedure Code, does not support the plaintiff's contention. In that case all proceedings were held to be erroneous, and the judgment was set aside and the case remitted for a new trial. At the argument in appeal the appellant's counsel cited section 601 of the Civil Procedure Code, and submitted that it showed that in an action for dissolution of marriage, when the Court was not satisfied that the plaintiff's case was proved the order to be made by the Court was one dismissing the plaint. That section has been borrowed, as indeed many other sections of chapter 42 of our Code have been, almost verbatim from the English Act 20 and 21 Vic, ch. 85. It is nearly in the same terms as section 29 of that Act; and, therefore, in considering the point raised, English authorities might well be consulted. The latest case that may be cited as throwing light on the subject is that of Otway v. Otway (L. R., 3. and D. 141). There, both husband and wife had presented cross petitions for dissolution of the marriage. Both were found guilty of adultery, and the husband was found guilty of cruelty also of an aggravated character. The Judge refused to decree a dissolution of marriage, but granted to the wife a decree for judicial separation. In appeal the order for judicial separation was dealt with on its own merits and discharged, the reason being that the fact that the wife was guilty of adultery disentitled her to relief in the shape of judicial separation. There was no disapproval, however, of the procedure adopted of converting a proceeding for dissolution of marriage into one for judicial separation. I think, therefore, that the course adopted by the District Judge is permissible in a case like this; but an issue should be framed and the defendant should be given every opportu

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